Mar 9 NORTHWARD HO! How Russian Lawfare is Conquering the Arctic

The Arctic has become an object of desire for coastal and non-coastal States for the exploitation of natural resources since the scientific recognition in 2001 that the High North is melting as a result of changes to the planet’s climate.[i] A scramble for the Arctic will lead to future conflict, open and dormant, kinetic and non-kinetic. A conflict already underway is in the form of “lawfare” – defined as the use of law as a weapon – and is a tactic currently employed by Russia. [ii] As in Ukraine, both pre-and post-Crimea, Russia used lawfare extensively in order to create an ex novo, Russian-centered, legal framework to justify its illegal actions. [iii] It appears that the same is happening in the High North. A 2016 Finnish analysis of Russia’s ambitions in the Arctic noted that, “During the Ukraine conflict, Russia’s public endorsements of international law and co-operation vis-à-vis the Arctic have co-existed with bolder rhetoric about the region’s territorial value for Russia.” [iv]

The precarious legal architecture applicable to the Arctic makes it an ideal playing field for such non-lethal, war-fighting action. Arctic-applicable law is extremely complex and fragmented and has tributaries stemming from domestic, regional, and international law, as well as hard and soft law. Arctic-applicable law involves legal disciplines including environmental, indigenous, regulatory, energy, and land-use law.[v] While this portrays a discouraging landscape, the reality is that this complexity also offers opportunities for legislators to create law pertaining to the Arctic that can be used for affirmative as well as negative purposes. Lawfare as a means of non-lethal warfighting can be applied in the Arctic in four distinct legal domains: international hard and soft law, domestic law, and private international law.[vi]

Russia has found opportunities to apply lawfare in the High North since the 1990s. One such example can be found in Russian domestic legislation attempting to legalize future Russian claims to the Arctic. The Russian Federal Law on the EEZ and the Adjacent Zone of 1998 already refers expressly to the Northern Sea Route (NSR) as part of Russian internal waters by using straight lines like Canada.[vii]

If Russian attempts to extend its straight baselines and continental shelf beyond the existing 200 nautical miles were to go unchallenged, Russia could claim extended absolute coastal State authority in internal waters, and extensive functional authority over its extended continental shelf, thereby significantly increasing Russia’s sovereign rights. Russia has enacted laws and regulations that are significantly more stringent than Generally Accepted International Rules and Standards. This form of lawfare has a negative impact on other states’ navigation of warships and other government vessels, and questions Grotius’ fundamental principle of mare liberum.

For Russia, the notion of the Northern Sea Route (NSR) as a national asset is well-established. A specific body of legal rules have been developed for navigation through its Arctic waters. These rules establish international standards, as in Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS), which tightly regulate the passage along the NSR. These rules may become even more rigid by issuing new NSR law that blurs the distinction between the territorial sea and the Exclusive Economic Zone (EEZ), and may end up impeding de facto the use of the NSR in the context of Article 234 of the UNCLOS.[viii] This would amount to preemptive lawfare by Russia.

In February 2013, Russia issued “The Strategy of Development of the Arctic Zone of the Russian Federation and ensuring National Security up to 2020”, with the goal of bolstering Russia’s sovereignty and reinforcing its military capabilities in the Arctic.[ix] This strategy has manifested in an unprecedented and unilateral military build-up in the High Sea. In December 2014, Russia created the Joint Strategic Command North, and as a result of this new lawfare approach has already established several bases in the region. Russia’s lawfare in the Arctic culminated in the August 2015 appeal to the UN for the recognition of a large expanse of approximately 460,000 square miles of the Arctic Sea, including the North Pole, as part Russia’s EEZ, in direct conflict with claims from ‘Arctic’ countries. These Russian activities in the Arctic seem to follow the example of China’s aggressive ‘Anti-Area/Access-Denial’ strategy employed in the South China Sea, which is being implemented by military threats, the show of force, the use of coercion towards other states in the region, as well as lawfare.

The regulations passed by Russian legislators to create and finance these resources must be considered “time bomb” lawfare, as any action by NATO members to confront Russian activities will be considered an interference in Russian internal affairs and perhaps as a breach of international law. The precariousness of the Arctic legal framework prepares the ground for a repeat of a pre-Crimean occupation by Russian utilizing lawfare in order to claim increased ‘sovereignty rights’.

[iv] J. Käpylä, Harri Mikkola, T. Martikainen, ‘Moscow’s Arctic Dreams Turned Sour. Analysing Russia’s Policies in the Arctic’, FIIA Briefing Paper 192 (March 2016), pp. 6-7. “Russia has chosen the path of a revisionist power in Europe, Russia’s security policy signals in the Arctic have been more mixed. Russia utilises both hard and soft power tools in its Arctic policy and Russian Arctic discourse has both belligerent and cooperative elements, often depending on who is expressing them and whether the discourse is directed at domestic or international audiences.”

[vi] The idea is drawn from E. Canuel, The Four Arctic Law Pillars: A Legal Framework, Georgetown Journal of International Law, Vol 46, pp. 735-761. For a more detailed discussion see A. Mosquera & S Bachmann, “Russia’s Lawfare in the Arctic” in The Operational Law Quarterly 17(1) 2016

About the Authors

Sascha-Dominik Bachmann, Assessor Jur, LLM (Stel) LLD (UJ), is an Associate Professor in International Law (Bournemouth University, UK) and Associate Professor in War Studies (Swedish Defence University, SWE). Outside academics, he served in various capacities as lieutenant colonel (army reserve), taking part in peacekeeping missions in an operational and advisory capacity. He took part as NATO’s Rule of Law Subject Matter Expert (SME) in NATO’s Hybrid Threat Experiment of 2011 and in related workshops at NATO and national level

Andres B. Munoz Mosquera is a graduate of the Fletcher School of Law and Diplomacy (Tufts University), member of the Bar Association of Madrid, CCBE European Lawyer and the Legal Advisor and Director of the Supreme Headquarters Allied Power, Europe (SHAPE). He would like to thank Nikoleta Chalanouli for her helpful comments and editorial assistance.

DISCLAIMER: The views and opinions of the authors expressed herein do not state or reflect those of the universities, associations, or organizations associated with the authors. All references made to NATO are open source and can be found on the Internet. The text is in a personal capacity and should not be intended to represent the views of the author's employers.